Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 1 of 82 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA MACON DIVISION

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1 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 1 of 82 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA MACON DIVISION JERRY COEN, BRANDON COBB, JOHN DOE, TOMMY GREEN, RICARDO HARRIS, LEROY HENDERSON, CARLOS HERRERA, TONY MOORE, JR., CHRISTOPHER SHIELDS, ANDREW SMITH, DARRELL SMITH, JR., JORAE SMITH, JONAH WOODEN, and JEREMY WOODY, on behalf of themselves and all others similarly situated, Plaintiffs, v. GEORGIA DEPARTMENT OF CORRECTIONS; GEORGIA DEPARTMENT OF COMMUNITY SUPERVISION; GEORGIA STATE BOARD OF PARDONS AND PAROLES; GREGORY C. DOZIER, in his official capacity as Commissioner of the Georgia Department of Corrections; MICHAEL NAIL, in his official capacity as Commissioner of the Georgia Department of Community Supervision; JAMES MILLS, in his official capacity as Chairman of the Georgia State Board of Pardons and Paroles; TIMOTHY C. WARD, in his official capacity as the Chief of Staff of the Georgia Department of Corrections; CLAY NIX, in his official capacity as the Director of Professional Standards of the Georgia Department of Corrections; RICKY MYRICK, in his official capacity as the Assistant Commissioner of the Facilities Division of the Georgia Department of Corrections; JACK RANDY SAULS, in his official capacity as the Assistant Commissioner of Health Services for the Georgia Department of Corrections; JAY SANDERS, in his official capacity as the Assistant Commissioner of Inmate Services of the Georgia Department of Corrections; CLINTON PERRY, JR., in his official capacity as Warden of Central State Prison; TED PHILBIN, in his official capacity as Warden of Augusta State Medical Prison; ANTOINE CALDWELL, in his official capacity as Warden of Johnson State Prison Defendants. Civil Action No. 5:16-cv-353-MTT CLASS ACTION [PROPOSED] REVISED SECOND AMENDED COMPLAINT

2 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 2 of 82 INTRODUCTION 1. Plaintiffs are deaf and hard of hearing individuals 1 who are incarcerated in the Georgia Department of Corrections prisons and/or supervised by the Georgia Department of Community Supervision. Plaintiffs seek to represent a class of similarly situated deaf and hard of hearing individuals. 2. Defendants have denied, and continue to deny, Plaintiffs, and those similarly situated to Plaintiffs, equally effective communication required by the Americans with Disabilities Act and the Rehabilitation Act. Because most Plaintiffs have extremely limited English, Plaintiffs and similarly-situated deaf and hard of hearing individuals require qualified sign language interpreters, or other auxiliary aids and services, for effective communication access. Defendants deny Plaintiffs this legally-required communication access at every stage of their incarceration, parole, and probation. 3. Plaintiffs often begin their incarceration after a criminal legal process in which they were denied sign language interpreters, or other necessary communication aids, when they were arrested and interrogated, when they were meeting with their public defenders, and when they were persuaded to accept plea agreements. As a result, Plaintiffs enter prison having had little or no opportunity to understand the charges against them or even the lengths of their sentences. 4. In prison, Defendants deny Plaintiffs communication access to such basic information as the rules of the prison and the steps needed to become eligible for probation or parole. Defendants deny communication access at disciplinary hearings and for medical 1 Plaintiffs use the terms deaf and hard of hearing to refer to individuals with hearing levels or hearing loss that qualify as disabilities under the Americans with Disabilities Act and the Rehabilitation Act. Plaintiffs use the term Deaf to refer to individuals who are deaf from birth or childhood and who use sign language as their primary means of language. The phrase deaf and hard of hearing includes Deaf individuals.

3 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 3 of 82 appointments. Defendants deny communication access to religious, educational, and vocational programs. Defendants even deny communication access to courses designated as a pre-requisite for release. As a consequence, Plaintiffs have no information on what rules they are to follow. They suffer arbitrary discipline, punishments, and abuses. Plaintiffs with life-threatening illnesses go without treatment. Plaintiffs have no access to the support and programming that would allow them to shorten their sentences and better prepare for a return to society. 5. These communication barriers continue for any Plaintiff released on probation or parole. Defendants deny Plaintiffs equally effective communication in meetings with their parole and probation officers, local sheriffs, and in reviewing the conditions of parole or probation. Defendants insist that Plaintiffs must procure, and pay for, their own interpreters if they want to understand the steps they must take and the rules they must follow while under supervision. Consequently, Plaintiffs are often cited for probation violations and returned to prison. In short, because Defendants refuse to provide communication access as required by federal law, deaf and hard of hearing people are incarcerated more frequently, suffer harsher prison conditions, remain in prison longer, and return to prison faster. 6. Without sign language interpreters and other auxiliary aids and services, Plaintiffs have no information about the prison s rules and procedures. When deaf and hard of hearing inmates then fail to follow the unexplained rules and procedures, Defendants subject them to disciplinary hearings. At the disciplinary hearings, they are not only further denied sign language interpreters or other auxiliary aids and services needed to understand why they are there, but they are also routinely handcuffed behind their backs, so they cannot even gesture, or write notes in their own defense. As a result, Plaintiffs and those similarly situated are more -3-

4 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 4 of 82 likely to be accused of rule violations, to face disciplinary proceedings, and to serve longer sentences because of their supposed poor behavior. 7. When Plaintiffs, including similarly situated deaf and hard of hearing inmates, end up in a segregated setting such as solitary confinement, they experience particularly egregious deprivations. Plaintiffs miss meals, showers, appointments, and medications because these are announced using only aural cues which are not accessible to Plaintiffs. Plaintiffs have no ability to communicate with nearby guards, counselors, or other inmates, thereby causing them more extreme isolation. 8. When Plaintiffs and similarly situated deaf and hard of hearing inmates attend meetings with prison counselors and staff, Defendants routinely deny them sign language interpreters and other auxiliary aids and services. The same is true for religious services, vocational and educational programming, including programming required for release, and important meetings and programs regarding reentry. These failures, too, make deaf and hard of hearing inmates more isolated, and make it more likely that they serve longer sentences and face unnecessary obstacles both in prison and upon release. 9. Without sign language interpreters and other auxiliary aids and services, deaf and hard of hearing inmates are denied basic health care. Plaintiffs cannot understand communications during appointments with health care professionals. They cannot participate effectively in mental health therapy. They cannot communicate regarding serious and even lifethreatening health conditions. They miss out on aural announcements related to health care, such as pill call. Deaf and hard of hearing inmates are further denied hearing-related care, such as hearing aids, cochlear implants, and appointments with hearing specialists. These failures not only violate the guarantees of the Americans with Disabilities Act, 42 U.S.C , et seq. -4-

5 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 5 of 82 ( ADA ) and Section 504 of the Rehabilitation Act, 29 U.S.C. 701 ( Section 504 ), but also the guarantees of the U.S. Constitution. 10. Because American Sign Language ( ASL ) is a distinct language, with its own syntax and grammar, Deaf inmates who use ASL as their primary language typically have extremely limited English and cannot read, fill out, or understand written documents without auxiliary aids and services. When Deaf inmates receive documents from the prison system, or from the Georgia Board of Pardons and Paroles ( GBOP ), they are unable to understand these documents because their contents are not explained in ASL. (This is akin to giving documents in Japanese to a person who understands only English.) Without translation assistance, Deaf inmates are unable to respond appropriately to these documents. Deaf inmates are thus deprived of the information necessary to effectively participate in the parole and reentry process. They often do not understand their sentences, their parole eligibility dates, how to maximize their chances for parole, or how to prepare for release. They do not recognize or understand how to correct clerical and other errors in their sentence computations, putting them at risk of longer incarceration due to such errors. These same barriers make the internal grievance procedure maintained by the Georgia Department of Corrections ( GDOC ) inaccessible to Deaf inmates. 11. Deaf and hard of hearing inmates are also denied equal access to phone calls. Telephone calls are a primary means by which incarcerated individuals stay in touch with family, friends, and attorneys. Studies show that incarcerated persons who maintain family ties are more likely to leave incarceration and succeed in the community. But deaf and hard of hearing inmates are denied access to videophones, TTYs, captioned telephones, and amplified telephones. This denial of phone access is particularly difficult for the many Deaf inmates who are not able to write or read letters. -5-

6 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 6 of Emergency planning and preparation also exclude Plaintiffs and similarly situated inmates who are deaf and hard of hearing. The prison system does not include effective visual alarms, bed-shaking devices, and evacuation planning for deaf and hard of hearing inmates. Other failures to provide reasonable modifications for Plaintiffs and similarly situated deaf and hard of hearing inmates are detailed below, including the absence of adequate policies or training for prison guards, wardens, and other personnel to understand the needs of such inmates. 13. These communication barriers continue when Plaintiffs and similarly situated deaf and hard of hearing inmates are under the supervision of the Georgia Department of Community Supervision ( GDCS ), either for a term of supervision following incarceration or in lieu of incarceration. People subject to supervision by GDCS may be subject to the requirements of probation, parole, and/or the sex offender registry. Failure to comply with the requirements of state supervision can result in incarceration, sometimes for periods of years. 14. Defendant GDCS fails to ensure effective communication access to Plaintiffs and similarly situated people subject to state supervision. Meetings with probation officers, parole officers, and Sex Offender Registration Team officers are routinely held without interpreters or auxiliary aids and services. Plaintiffs and similarly situated deaf and hard of hearing supervisees are unable to understand the conditions and requirements of their supervision. These requirements are often complex, specific, and subject to change. For example, on information and belief, some Georgia counties impose a daily curfew on people subject to probation, while other counties have no such obligation. But because there is no effective communication with deaf and hard of hearing supervisees, Plaintiffs and similarly situated deaf and hard of hearing people under supervision often do not understand the terms of their release and supervision, -6-

7 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 7 of 82 putting them at risk of unknowingly violating these requirements. Ultimately, the communication failures make it more likely that Plaintiffs will return to prison. 15. Plaintiffs seek, on behalf of themselves and those similarly situated, injunctive relief, declaratory relief, attorneys fees and costs, and additional remedies. JURISDICTION 16. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331, 2201, and VENUE 17. Venue is proper in this District, under 28 U.S.C. 1391(b), because numerous Defendants reside in the Middle District of Georgia, and a substantial part of the events giving rise to claims herein occurred within this District. PARTIES Plaintiffs 18. Plaintiff JERRY COEN is a 44-year-old man who was incarcerated at Central State Prison ( CSP ) in Macon, Georgia from 2009 to He is currently under supervision of GDCS. Mr. Coen is Deaf and communicates primarily through ASL. Mr. Coen has extremely limited written or spoken English. Mr. Coen is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 19. Plaintiff BRANDON COBB is a 30-year-old man incarcerated at CSP, where he was transferred in Mr. Cobb has been incarcerated since Prior to being transferred to CSP, Mr. Cobb was incarcerated at Johnson State Prison ( JSP ) in Wrightsville Georgia, -7-

8 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 8 of 82 Augusta State Medical Prison ( ASMP ) in Grovetown, Georgia, 2 and Georgia Diagnostic and Classification State Prison ( Georgia Classification Prison ) in Jackson, Georgia. Mr. Cobb is Deaf and uses ASL to communicate. Mr. Cobb understands almost no written English. Mr. Cobb is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 20. Plaintiff JOHN DOE is in the custody or under the supervision of Defendants. He is Deaf. Mr. Doe proceeds under a pseudonym in this case out of well-founded fear of retaliation by Defendants. Mr. Doe is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 21. Plaintiff TOMMY GREEN is a 53-year-old man incarcerated at CSP. Mr. Green has been incarcerated since Prior to being transferred to CSP in 2011, Mr. Green was incarcerated at Coastal State Prison in Garden City, Georgia, ASMP, and Men s State Prison in Milledgeville, Georgia. Mr. Green is Deaf and communicates using ASL. He does not use or understand written or spoken English. Mr. Green is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 22. Plaintiff RICARDO HARRIS is a 38-year-old man incarcerated at CSP, where he was transferred in Mr. Harris has been incarcerated since Prior to being transferred to CSP, Mr. Harris was incarcerated at ASMP and Georgia Classification Prison. Mr. Harris is Deaf and communicates using ASL. Mr. Harris has extremely limited English. Mr. Harris is a 2 In February 2018, Plaintiffs Andrew Smith, Jorae Smith, Brandon Cobb, Ricardo Harris, and Carlos Herrera, were all transferred simultaneously from ASMP to CSP. Mr. Cobb was then transferred to JSP shortly thereafter, and was re-transferred back to CSP after five weeks. -8-

9 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 9 of 82 qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 23. Plaintiff LEROY HENDERSON is a 65-year-old man incarcerated at JSP. Mr. Henderson has been incarcerated since Prior to being transferred to JSP in 2018, Mr. Henderson was incarcerated at Coastal State Prison. Mr. Henderson is hard of hearing as a result of a workplace explosion in the 1970s. Mr. Henderson communicates through speaking, residual hearing, and written notes; Mr. Henderson does not use ASL. Mr. Henderson also has psychiatric disabilities. Mr. Henderson is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 24. Plaintiff CARLOS HERRERA is a 46-year-old man currently subject to state supervision under GDCS. Mr. Herrera was incarcerated from 2013 through He was incarcerated at Georgia Classification Prison, ASMP, and CSP. Mr. Herrera is Deaf and communicates using ASL. Mr. Herrera does not use or understand English. Mr. Herrera also has high blood pressure and significant, chronic hip pain. Mr. Herrera is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 25. Plaintiff TONY MOORE, JR. is a 38-year-old man incarcerated at CSP. Mr. Moore has been incarcerated since Prior to being transferred to CSP in 2010, Mr. Moore was incarcerated at Men s State Prison and Coffee Correctional Facility in Nicholls, Georgia. Mr. Moore is Deaf and communicates primarily through his first language, ASL. Mr. Moore has very limited English, and he can understand or convey only simple information in written English. Mr. Moore is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. -9-

10 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 10 of Plaintiff CHRISTOPHER SHIELDS is a 37-year-old man incarcerated at CSP. Mr. Shields has been incarcerated since Mr. Shields has previously been incarcerated at Georgia Classification Prison, Men s State Prison, and Hancock State Prison in Sparta, Georgia. Mr. Shields is Deaf and communicates primarily through his first language, ASL. Mr. Shields can understand some written English and can speech-read some communications, 3 but he has limited English. Mr. Shields also has diabetes, arthritis, and depression. Mr. Shields is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 27. Plaintiff ANDREW SMITH is a 33-year-old man incarcerated at CSP. Mr. A. Smith has been incarcerated since Mr. A. Smith has previously been incarcerated at Georgia Classification Prison and ASMP. Mr. A. Smith is Deaf and communicates primarily through his first language, ASL. Mr. A. Smith can understand some written English and can speech-read some communications. Mr. A. Smith also has an amputated leg and uses a prosthetic. Mr. A. Smith is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 28. Plaintiff DARRELL SMITH, JR. is a 40-year-old man incarcerated at CSP. Mr. D. Smith has been incarcerated since Mr. D. Smith has previously been incarcerated at Georgia Classification Prison and Hancock State Prison, and has visited ASMP on numerous occasions. Mr. D. Smith is Deaf and communicates using ASL. Mr. D. Smith does not use or 3 Speech-reading, sometimes referred to as lip-reading, is the practice of detecting words on a speaker s mouth based on facial and mouth movements. This is almost never an effective means of communication for people who are deaf or hard of hearing. Only about 30% of all speech is visible on the lips. Georgia Tech Research Institute, Deafness and Hardness of Hearing Fact Sheet, Moreover, speech-reading demands fluent comprehension of English and is highly dependent on, inter alia, the proximity and eye contact between the speaker and the speech-reader, a quiet and well-lit environment, the speaker s ability to articulate or their accent, and presence of facial hair or masks that block the speaker s lips. -10-

11 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 11 of 82 understand English. Mr. D. Smith also has significantly impaired vision in one eye. He does not fully understand his eye condition, but he believes he may lose all vision in that eye. Mr. D. Smith also experiences significant ankle pain and cannot stand for long periods of time. Mr. D. Smith is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 29. Plaintiff JORAE SMITH is a 22-year-old man incarcerated at CSP. Mr. J. Smith has been incarcerated since Mr. J. Smith has previously been incarcerated at Georgia Classification Prison, Coastal State Prison, Valdosta State Prison in Valdosta, Georgia, and ASMP. Mr. J. Smith is Deaf and communicates using ASL. Mr. Smith does not use or understand English. Mr. J. Smith also has a psychiatric disability. Mr. J. Smith is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 30. Plaintiff JONAH WOODEN is a 27-year-old man incarcerated at CSP. Mr. Wooden has been incarcerated since Prior to being transferred to CSP in 2017, Mr. Wooden was incarcerated at Georgia Classification Prison. He was previously incarcerated at Riverbend Correctional Facility in Milledgeville, Georgia, Walker State Prison in Rock Spring, Georgia, and Coffee Correctional Facility. Mr. Wooden is Deaf and communicates primarily through his first language, ASL. Mr. Wooden can understand some written English and can speech-read some communications, but he has limited English. Mr. Wooden is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. 31. Plaintiff JEREMY WOODY is a 48-year-old man who was incarcerated at CSP from 2013 to He is currently under the supervision of GDCS. Mr. Woody is Deaf and -11-

12 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 12 of 82 communicates primarily through his native language, ASL. Mr. Woody has limited written or spoken English. Mr. Woody also has significant scoliosis and a history of cancer both malignant melanoma and thyroid cancer. Mr. Woody is a qualified person with a disability within the meaning of Title II of the ADA and Section 504. He has experienced the violations described herein. Defendants State Agency Defendants 32. Defendant GDOC is the Georgia state agency responsible for the operation of nearly 100 facilities confining more than 56,000 individuals sentenced to state incarceration. Defendant GDOC operates and oversees state prisons, private prisons, county prisons, transition centers, substance abuse centers, and probation detention centers. Defendant GDOC is legally responsible for ensuring compliance with federal disability nondiscrimination laws and the U.S. Constitution at all Georgia prisons. Defendant GDOC is a public entity within the meaning of Title II of the ADA. Defendant GDOC receives federal financial assistance and is covered by Section 504. Defendant GDOC s mission statement is to protect[] the public by operating secure and safe facilities while reducing recidivism through effective programming, education, and healthcare Defendant GDCS is an executive branch agency of the State of Georgia. Defendant GDCS was established in 2015 to supervise the more than 200,000 people on probation and parole across the state. Defendant GDCS also supervises individuals on the sex offender registry across the state. Defendant GDCS is a state agency with field offices across the state. The agency is legally responsible for ensuring compliance with federal disability 4 Georgia Department of Corrections, Mission, Vision, and Core Values,

13 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 13 of 82 nondiscrimination laws and the U.S. Constitution in the probation and parole supervision process. Defendant GDCS is a public entity within the meaning of Title II of the ADA. Defendant GDCS receives federal financial assistance and is covered by Section 504. Defendant GDCS s mission is to protect and serve all Georgia citizens through effective and efficient offender supervision in our communities, while providing opportunities for successful outcomes Defendant GBOP is an executive branch agency of the State of Georgia. Defendant GBOP is authorized to grant paroles, pardons, reprieves, remissions, and commutations, and restore civil and political rights. The agency is legally responsible for ensuring compliance with federal disability nondiscrimination laws and the U.S. Constitution in the parole and pardon process. Defendant GBOP is a public entity within the meaning of Title II of the ADA. Defendant GBOP receives federal financial assistance and is covered by Section 504. Defendant GBOP s mission statement is [t]o serve the citizens of Georgia by exercising the constitutional authority of executive clemency through informed decision-making, thereby ensuring public safety, protecting victims rights, and providing offenders with opportunities for positive change. 6 Individual Defendants 35. Defendant GREGORY C. DOZIER is the Commissioner of GDOC and is responsible for oversight of GDOC, including its day-to-day operations. Defendant Dozier is responsible for ensuring compliance with federal disability nondiscrimination laws and the U.S. Constitution at all state prisons. Defendant Dozier is legally responsible for the unlawful policies, practices, and procedures challenged herein, and has the authority and legal obligation 5 Georgia Department of Community Supervision, Our Mission, 6 Georgia State Board of Pardons and Paroles, About,

14 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 14 of 82 to eliminate and remedy these policies, practices, and procedures. Defendant Dozier is sued in his official capacity. 36. Defendant MICHAEL NAIL is the Commissioner of GDCS. Defendant Nail is responsible for ensuring compliance with federal disability nondiscrimination laws and the U.S. Constitution in the programs, services, and activities of GDCS. Defendant Nail is legally responsible for the unlawful policies, practices, and procedures challenged herein, and has the authority and legal obligation to eliminate and remedy these policies, practices, and procedures. Defendant Nail is sued in his official capacity. 37. Defendant JAMES MILLS is the Chairman of GBOP. Defendant Mills is responsible for ensuring compliance with federal disability nondiscrimination laws and the U.S. Constitution in the programs, services, and activities of GBOP. Defendant Mills is legally responsible for the unlawful policies, practices, and procedures challenged herein, and has the authority and legal obligation to eliminate and remedy these policies, practices, and procedures. Defendant Mills is sued in his official capacity. 38. Defendant TIMOTHY C. WARD is the Chief of Staff of GDOC and is responsible for overseeing all divisions and departmental operations of the state prison system. Defendant Ward is legally responsible for the unlawful policies, practices, and procedures challenged herein, and has the authority and legal obligation to eliminate disability discrimination and unconstitutional practices in the operations of the state prison system. Defendant Ward is sued in his official capacity. 39. Defendant CLAY NIX is the Director of the Office of Professional Standards of GDOC and is responsible for gathering information, examining operations, enforcing departmental standards and laws through audits and investigations and recommending -14-

15 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 15 of 82 solutions. 7 Defendant Nix oversees compliance with the ADA and offender grievance policies and practices. Defendant Nix is legally responsible for the unlawful policies, practices, and procedures challenged herein and has the authority and obligation to eliminate disability discrimination and unconstitutional practices in the operations of the state prison system. Defendant Nix is sued in his official capacity. 40. Defendant RICKY MYRICK is the Assistant Commissioner of the Facilities Division of GDOC. Defendant Myrick oversees all state prisons, private prisons, and other GDOC detention facilities including transition centers, and probation detention centers. Defendant Myrick oversees staff at these institutions and monitors the overall supervision and safety of more than 56,000 prisoners. Defendant Myrick is legally responsible for the unlawful policies, practices, and procedures challenged herein, and has the authority and obligation to eliminate disability discrimination and unconstitutional practices in the operations of all GDOC incarceration facilities. Defendant Myrick is sued in his official capacity. 41. Defendant JACK RANDY SAULS is the Assistant Commissioner of Health Services of GDOC. Defendant Sauls oversees the physical, mental, and dental health of GDOC inmates, which includes providing services to inmates to treat medically necessary conditions. Defendant Sauls is legally responsible for the unlawful policies, practices, and procedures related to medical, mental health, and dental care challenged herein. Defendant Sauls has the legal authority and obligation to eliminate disability discrimination and unconstitutional conduct in the medical, dental, and mental health care operations of the state prisons. Defendant Sauls is sued in his official capacity. 7 Georgia Department of Corrections, Office of Professional Standards,

16 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 16 of Defendant JAY SANDERS is the Assistant Commissioner of Inmate Services of GDOC. Defendant Sanders is responsible for overseeing GDOC s academic education, vocational training, chaplaincy and risk reduction services, Residential Substance Abuse Treatment Centers, and transitional services and reentry. Defendant Sanders has the legal authority and obligation to eliminate disability discrimination and unconstitutional conduct in the education, transition, chaplaincy, and reentry planning operations in state prisons. Defendant Sanders is sued in his official capacity. 43. Defendant CLINTON PERRY, JR. is the Warden at CSP. As Warden, Defendant Perry is the legal custodian of individuals in CSP custody and control and is responsible for their safe, secure, and humane treatment. Defendant Perry is responsible for the administration of programs, services, and activities offered to inmates at CSP, and is in charge of supervision and discipline of all correctional officers and employees at CSP. On information and belief, Defendant Perry is aware of GDOC s policies and practices regarding deaf and hard of hearing individuals, and he is aware of specific written complaints by deaf and hard of hearing inmates at CSP, including Plaintiffs, regarding violations of their rights. Defendant Perry is sued in his official capacity. 44. Defendant TED PHILBIN is the Warden at ASMP. As Warden, Defendant Philbin is the legal custodian of individuals in ASMP custody and control and is responsible for their safe, secure, and humane treatment. Defendant Philbin is responsible for the administration of programs, services, and activities offered to inmates at ASMP, and is in charge of supervision and discipline of all correctional officers and employees at ASMP. On information and belief, Defendant Philbin is aware of GDOC s policies and practices regarding deaf and hard of hearing individuals, and he is aware of specific written complaints by deaf and hard of hearing inmates at -16-

17 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 17 of 82 ASMP, including Plaintiffs, regarding violations of their rights. Defendant Philbin is sued in his official capacity. 45. Defendant ANTOINE CALDWELL is the Warden at JSP. As Warden, Defendant Caldwell is the legal custodian of individuals in JSP custody and control and is responsible for their safe, secure, and humane treatment. Defendant Caldwell is responsible for the administration of programs, services, and activities offered to inmates at JSP, and is in charge of supervision and discipline of all correctional officers and employees at JSP. On information and belief, Defendant Caldwell is aware of GDOC s policies and practices regarding deaf and hard of hearing individuals. Defendant Caldwell is sued in his official capacity. FACTS 46. Defendants have violated, and continue to violate, federal laws protecting persons with disabilities in Georgia Department of Corrections ( GDOC ) custody, subject to Georgia Board of Pardons and Paroles ( GBOP ) authority, and subject to Georgia Department of Community Supervision ( GDCS ) supervision. Defendants conduct violates the Americans with Disabilities Act ( ADA ), the Rehabilitation Act, and the Eighth and Fourteenth Amendments of the U.S. Constitution. Violations of law include: (A) Failure to provide equally effective communication (including qualified interpreters, captioning, and other communication access) within the prisons and on supervision, including but not limited to the following important programs and activities: classification; orientation; disciplinary proceedings; vocational, educational, and religious programs; meetings with prison counselors and staff; reentry planning meetings; information relayed verbally to all inmates, such as pill calls, meal times, and meetings; important letters, memos, and documents provided by Defendants to Plaintiffs that cannot be understood by -17-

18 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 18 of 82 Plaintiffs because of their disabilities; and meetings with probation, parole, and sex offender officers after release; (B) Failure to provide equally effective communication at medical, mental health, and dental appointments, and failure to provide constitutionally minimum standards of medical, dental, and mental health treatment; (C) Failure to provide equally effective telecommunication with family, friends, and attorneys outside of the prison, including videophones, captioned telephones, and amplified telephones; (D) Unreasonable use of solitary confinement and/or administrative isolation on incarcerated people who are deaf and hard of hearing and for whom the isolation and deleterious effects of solitary are magnified; (E) Unreasonable use and placement of handcuffs without regard to the needs of deaf and hard of hearing incarcerated people to use their hands to communicate in American Sign Language ( ASL ) and through gesturing or writing notes; (F) Failure to include deaf and hard of hearing individuals in emergency planning by failing to ensure visual alarms, vibrating alarms, and accessible evacuation planning; and (G) Failure to maintain an accessible, adequate administrative exhaustion process, including by: maintaining a grievance system that is inaccessible to Deaf inmates who cannot read and write English; refusing to provide grievance forms to incarcerated people; refusing to accept completed grievances; refusing to provide incarcerated people with copies of submitted grievances, responses, appeal forms, or grievance numbers; threatening retaliation against incarcerated people who file grievances; and interfering with the exhaustion process by -18-

19 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 19 of 82 providing falsely back-dated, untimely responses to grievances and falsely back-dated, untimely extensions to the 40 days in which the prison is required to respond to grievances. A. Failure To Provide Equally Effective Communication (Including Qualified Interpreters, Captioning, And Other Communication Access) Within The Prisons And Under Supervision 47. Effective communication with officers, counselors, wardens, and other prison staff is essential for incarcerated people. People in the custody of GDOC are wholly dependent on GDOC for medical, dental, educational, mental health, employment, and religious needs, among other services. Individuals in the custody of GDOC are also dependent on GDOC and its staff for all of their basic daily needs, including food, exercise, and safety. 48. Effective communication with probation officers, parole officers, and sex offender registration officers is crucial for people on state supervision. People supervised by GDCS are at risk of re-arrest and re-incarceration if they do not comply completely with the complex requirements of their supervision. People who do not fully understand the requirements of their supervision, including people who cannot understand the written requirements, or people who are unable to communicate effectively with their supervision officers, are at heightened risk of arrest and incarceration simply because of communication failures. 49. People who are deaf at birth or who become deaf early in life and who learn ASL as their first language typically use ASL as their primary or only language. American Sign Language is a complete and complex language distinct from English it is not simply English in hand signals with its own vocabulary and rules for grammar and syntax. Many Deaf individuals who use ASL as their primary language have extremely limited written English. For these Deaf individuals, qualified ASL interpreters are necessary to ensure effective -19-

20 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 20 of 82 communication with an individual who is not proficient in ASL. 8 Speech-reading, fingerspelling, or ad hoc gestures are not effective communication for people who communicate in ASL. Notes and other writings are almost never an effective communication tool for Deaf individuals, particularly for complex and important topics such as medical care, mental health care, prison rules and requirements, disciplinary hearings, or parole and probation requirements. 50. For deaf and hard of hearing individuals who are fluent in English often those who lose their hearing later in life written communication in English may be an effective communication tool. Some late-deafened individuals are not proficient in ASL and prefer to communicate in writing. For these people, all information must be conveyed clearly in writing for communication to be effective. A scribbled note with only a few words summarizing the content of an hour-long class, for example, is not effective communication. Effective communication for deaf and hard of hearing individuals who are fluent in written English includes Communication Access Realtime Translation ( CART ). CART provides real-time typed transcriptions of spoken communication, similar to the technology used by court reporters. 51. For deaf and hard of hearing individuals who are fluent in both ASL and English, written notes may sometimes be effective for simple interactions. But most deaf and hard of hearing people who are bilingual in ASL and English still require ASL interpreters for complex or important interactions. 8 A qualified interpreter is one who is able to communicate effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. For some Deaf individuals, qualified interpretation requires a team of interpreters, including both an ASL interpreter (who is hearing and who can interpret from English to ASL), and a Certified Deaf Interpreter ( CDI ). A CDI is a Deaf person who works with the ASL interpreter to facilitate effective communication. -20-

21 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 21 of Speech-reading is virtually never an effective communication method for a deaf or hard-of-hearing individual. Fewer than 30% of English words can be distinguished reliably by speech-reading. 53. Defendants, through their policies and practices, fail to provide communication access for deaf and hard of hearing individuals in Defendants custody and control and under Defendants supervision. Defendants routinely fail to provide qualified interpreters, CART, and other auxiliary aids and services, for deaf and hard of hearing people in custody and under supervision. 54. Defendants failures to ensure communication access deprive deaf and hard of hearing people under Defendants control of effective communication in critical situations, including medical and mental health appointments, administrative hearings, classification reviews, and probation and parole meetings. Defendants also deprive deaf and hard of hearing inmates in GDOC custody of necessary auxiliary aids and services, such as qualified interpreters and CART, during important prison programs, such as educational classes, rehabilitative courses, and religious services some of which are prerequisites to release. Classification 55. On entry into GDOC custody, inmates are sent to Georgia Classification Prison. While there, Defendants conduct diagnostic processing for inmates. On information and belief, inmates at Georgia Classification Prison are assessed to determine what security level and prison they will be assigned. On information and belief, an incarcerated person s security classification is considered by GBOP in determining whether to grant parole to an individual. Communication is crucial at the classification stage to determine what programs, medical care, services, or facilities an individual will need. But Defendants fail to provide communication -21-

22 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 22 of 82 access for deaf and hard of hearing inmates at Georgia Classification Prison, preventing them from expressing their preferences, explaining their needs, or ensuring that they are classified in the least restrictive setting that is appropriate. Orientation 56. On arrival at a new prison, Defendants provide orientation information to explain the rules, policies, procedures, and opportunities (including jobs, classes, and religious programs) available at the prison. Communication is critical at this stage so that incarcerated people understand information relevant for classification, including needs, skills, and interests, and for prison staff to communicate the rules, expectations, and requirements of prison. Without this information inmates cannot know how to follow the rules, avoid disciplinary sanctions, and participate in the programs they need to access parole and to succeed in the community upon their release. But the content of orientation is not effectively communicated to Plaintiffs and other similarly situated deaf and hard of hearing incarcerated people. The content of orientation is conveyed either verbally or in writing. On information and belief, there have never been interpreters at any prison orientation in GDOC, with the exception of orientation at Central State Prison ( CSP ) following the mass transfer of deaf and hard of hearing inmates including several Plaintiffs in For example, Mr. Doe arrived at a facility and did not receive any effective communication to understand how the facility worked. He did not know how to get a job, earn privileges, take classes, or add his family to his visit list. Disciplinary Proceedings 58. Defendants impose disciplinary measures, including solitary confinement and commissary restrictions, on inmates in their custody. On information and belief, an incarcerated -22-

23 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 23 of 82 person s disciplinary history is a factor taken into account by Georgia Board of Pardons and Paroles ( GBOP ) in determining whether an individual will be released on parole. On information and belief, an incarcerated person s disciplinary history is also considered if he may be eligible for transfer to a lower-security facility. 59. On information and belief, the disciplinary process begins with a conversation between an officer who believes there has been an infraction and the incarcerated person believed to have broken a rule. After this, the officer may write up a disciplinary report ( DR ) on the inmate who the officer believes violated a prison rule. The write-up sometimes leads to a DR hearing, where the incarcerated person and the complaining officer each have an opportunity explain their side of the situation. The prison officials overseeing the DR hearing can impose sanctions including solitary confinement, official reports in the inmate s file, commissary restrictions, and other punishments. 60. On information and belief, officers who believe an inmate has violated a rule typically discuss the incident with the inmate and anyone else who may have witnessed the incident before writing a DR. But because Defendants fail to provide interpreters and other communication access, Plaintiffs and other similarly situated deaf and hard of hearing inmates are not able to resolve issues informally through conversation. If the officer does write a DR, the written report describes the incident, and the incarcerated person must sign the report. The DR includes a space for the incarcerated person to explain their defenses or why the accusation is incorrect. But Defendants fail to provide interpreters to explain these documents to incarcerated people who are Deaf and not proficient in written English. Deaf and hard of hearing inmates are therefore unable to understand the accusations against them or explain in writing any response, denial, or explanation of the incident. -23-

24 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 24 of If the incident is escalated to a DR hearing, the incarcerated person is routinely handcuffed during the proceedings, and cannot sign, gesture, or write notes. Interpreters, CART, and other communication aids are not provided during the hearings. As a result, deaf and hard of hearing inmates are unable to understand the charged rules violations or effectively participate by explaining their side of the story. 62. For example, in November 2017, Defendant Perry called Mr. Green into his office for a meeting. Mr. Green was handcuffed behind his back for the duration of the meeting. There were no ASL interpreters present. Defendant Perry wrote a note accusing Mr. Green of violating prison rules. With his hands cuffed behind his back, Mr. Green could not communicate with even rudimentary notes or hand gestures to defend himself. 63. For example, in September 2017, Mr. Moore was charged with failure to follow instructions and a violation of rules. He was handcuffed behind his back for the duration of the DR hearing. There were no ASL interpreters present. Mr. Moore was completely unable to communicate at the hearing. With his hands cuffed behind his back, he could not even communicate through simple written notes or hand gestures. Mr. Moore was not able to explain that he was wrongly charged and that the prison guard had mixed him up with another bald man. During the hearing, officers laughed at Mr. Moore s inability to communicate. Mr. Moore was punished with a 90-day suspension of store access, and the disciplinary incident remains on his record. 64. For example, in late 2017, Mr. Wooden received a written DR when an officer believed that Mr. Wooden was wearing a stolen t-shirt. Mr. Wooden s first language and preferred method of communication is ASL. But Mr. Wooden can understand some written English. Mr. Wooden knew that CSP would not provide an interpreter, so he asked the officer to -24-

25 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 25 of 82 write notes on a piece of paper so that Mr. Wooden would have at least some understanding of the conversation before the disciplinary process escalated. The officer became visibly angry and shouted at Mr. Wooden, refusing to write notes or use an interpreter to find out what happened. Instead, the officer wrote a DR for Mr. Wooden, alleging both theft of the t-shirt and insubordination based on Mr. Wooden s request for communication access. 65. For example, in 2016, Mr. Coen was subjected to a DR hearing. His hands were cuffed behind his back for the duration of the hearing. The handcuffs were on too tightly, causing Mr. Coen pain and injury. He was unable to communicate, or understand the proceedings. He then spent a week in solitary confinement as a result of the hearing, which he could not understand or participate in. 66. For example, in 2017, Mr. Doe received a DR. Mr. Doe was wrongfully accused of an infraction that he did not commit. But because he is not proficient in English, Mr. Doe was not able to understand or defend himself with regard to the written DR. Mr. Doe was denied equal access to defend himself and explain the accusation against him because of Defendants failure to provide equal communication access. Educational, Vocational, And Religious Programs 67. Defendants provide educational, vocational, counseling, and religious programs for individuals in GDOC custody. Incarcerated people who participate in educational, vocational, and counseling programs earn Performance Incentive Credits ( PIC Points ), which can reduce prison terms by up to 12 months. 9 On information and belief, some inmates are required to attend specific classes, such as substance abuse, anger management, and other risk reduction courses and programs as a condition of parole or probation. Defendant GDOC states 9 Georgia Department of Corrections, 2017 Performance Incentive Credit Fact Sheet,

26 Case 5:16-cv MTT Document 33-1 Filed 06/20/18 Page 26 of 82 that its programs are critical to Governor Nathan Deal s criminal justice reform and the prison reentry initiative, and that in-custody educational, religious, vocational, and risk reduction programs are designed to prepar[e] offenders for their return to society as productive citizens. 10 But Defendants repeatedly and knowingly fail to provide communication access, including interpreters and CART, to allow individuals who are deaf and hard of hearing to participate in these important programs. 68. For example, Mr. D. Smith attempted to take a GED class for years at CSP but was repeatedly denied because there was no interpreter for the class. He was repeatedly told that he could not attend because there were no interpreters. Mr. A. Smith also attempted to attend a GED class numerous times in recent years. After Mr. A. Smith filed grievances with the support of Plaintiffs attorneys, Augusta State Medical Prison ( ASMP ) provided an ASL interpreter for the first few classes, but then the interpreter stopped attending classes. Mr. A. Smith does not know why the interpreter stopped coming to classes. He was no longer able to participate in the GED class at ASMP after the interpreter stopped attending. 69. For example, Mr. Herrera believes that a condition of his release on parole was successful completion of a specific risk-reduction class. But Mr. Herrera was repeatedly rejected from this class because ASMP refused to provide interpreters. Mr. Herrera s tentative parole month was scheduled for July 2016, but he did not get parole. Mr. Herrera believes that he was denied parole in part because he had not completed any classes. Because GBOP shares information with potential parolees in writing only, Mr. Herrera does not have any idea whether he was considered for parole, or whether GBOP provided explanations for denying him parole. Mr. Herrera believes that Defendants failure to ensure effective communication access may 10 Georgia Department of Corrections, Education and Programs,